Judge Michael P. Linfield, Case 22STCV11579 2023-02-24 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV11579, Date: 2023-02-24 Tentative Ruling

Case Number: 22STCV11579 Hearing Date: February 24, 2023 Dept: 34

SUBJECT: Motions to Compel Further Responses to Demand for Production and Inspection of Documents and Things, Set No. One

Moving Party: Joe Maez, Hunter Maez, and Maez Restaurant Group LLC

Resp. Party: Defendant Heriberto Camacho, Jr.

SUBJECT: Motions to Compel Further Responses to Demand for Production and Inspection of Documents and Things, Set No. One

Moving Party: Joe Maez, Hunter Maez, and Maez Restaurant Group LLC

Resp. Party: Restaurant Design Studio Corp.

The Court GRANTS in part and DENIES in part the Motions. As to Defendant Camacho, the Motion is DENIED regarding Inspection Demand 30. As to Defendant Restaurant Design Studio Corp., the Motion is DENIED regarding Inspection Demands No. 30 and GRANTED as to Demands Nos. 36, 38 through 41, and 44 through 45.

The Court AWARDS monetary sanctions in favor of Plaintiffs and against Defendants and their Counsel, jointly and severally, in the amount of $2,882.00.

BACKGROUND:

On April 5, 2022, Plaintiffs Joe Maez, Hunter Maez, and Maez Restaurant Group LLC filed their Verified Complaint against Defendants Heriberto Camacho, Jr. and Restaurant Design Studio Corp. on causes of action regarding alleged issues with Defendants’ renovation of Plaintiffs’ property.

On November 7, 2022, Plaintiffs filed their First Amended Verified Complaint.

On December 12, 2022, Defendants filed their Verified Answer to First Amended Complaint.

On January 26, 2023, Plaintiffs filed two Motions to Compel Further Responses to Demand for Production and Inspection of Documents and Things, Set No. One — one directed at Defendant Camacho, and another directed at Defendant Restaurant Design Studio Corp. Both Motions include a Request for Sanctions. With each of the Motions, Plaintiffs concurrently filed: (1) Declaration of Jason Riddick; (2) Separate Statement; (3) Index of Exhibits; (4) Request for Judicial Notice; and (5) Proposed Order.

On February 9, 2023, Defendants filed their respective Oppositions. With each of the Oppositions, Defendants concurrently Declaration of Mark J. Skapik.

On February 16, 2023, Plaintiffs filed their Combined Reply. Plaintiffs concurrently filed Supplemental Declaration of Robert Grijalba.

ANALYSIS:

I. Requests for Judicial Notice

Both of Plaintiffs’ Requests for Judicial Notice request that the Court take judicial notice of:

(1) The First Amended Verified Complaint in this matter; and

(2) The Verified Answer to the First Amended Verified Complaint in this matter.

Judicial notice is denied as superfluous. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

II. Legal Standard

On receipt of a response to form interrogatories, special interrogatories, and/or demand requests, the propounding and/or demanding party “may move for an order compelling further response” if: (1) the response is evasive or incomplete; (2) the representation of inability to comply is inadequate, incomplete, or evasive; or (3) the objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a).)¿¿¿

The court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further interrogatories and/or a motion to compel further production of documents, unless the Court finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).)

III. Discussion

For ease of discussion, the Court analyzes the Motions together.

A. Requests for Production of Documents Propounded

1. Requests for Production of Documents Propounded on Defendant Camacho

Plaintiff propounded the following requests for production of documents (“RPDs”) on Defendant Camacho:

Inspection Demand No. 1:

All non-privileged DOCUMENTS that RELATE TO the PROJECT.

“DOCUMENT” or “DOCUMENTS” shall mean and refer to all writings as described by California Evidence Code section 250, and including any and all handwriting, typewriting, printing, photostatting, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, whether draft, signed copy, original, or copies of the original, regardless of the manner in which the record has been stored.

DOCUMENTS shall include but not be limited to the following items: notes; logs; lists; notebooks of any nature, calendars, appointment books and planners; correspondence, communications of any nature (including intra-company communications and correspondence), electronic mail messages, electronic instant messages, voice messages, text messages, telegrams, cables, memoranda (including internal memoranda); summaries, minutes and recordings of telephone conversations and in person conversations; minutes and recordings of meetings, conferences and teleconferences, including lists of persons attending them; diaries, journals, ledgers, memoranda, routing slips; reports, including tests, laboratory, and analysis results, quality control reports, and inspection reports; books, manuals, specifications, publications; invoices, shipping papers, purchase orders; plans, patterns, drawings, sketches, blueprints, models; flow charts, schematics, diagrams; photographs; transcripts; reports and/or summaries of investigations, interviews, or statements; opinions, analyses, appraisals, forecasts, or reports of consultants; agreements and contracts, including all modifications or revisions thereof; reports and/or summaries of negotiations; labels, tags, placards; fliers, counter cards, brochures, pamphlets, advertisements, advertising layouts, circulars, trade letters, press releases, and translations; presentations, including boards, transparencies, storybooks and/or scripts; and any marginal or other comments or notes appearing on any DOCUMENTS.

“RELATE,” or any variant thereof, including, but not limited to, the phrases “RELATE TO” or “RELATING TO” shall be understood to apply if the data or information evidences, mentions, constitutes, contains, summarizes, describes, concerns, refers to (directly or indirectly), supports, contradicts, addresses in any way or otherwise deals with the subject matter described in the request in which the term appears.

The “PROJECT” means all work RELATED TO the property at 217 W. Bonita Avenue (APN: 8387-014-033) (San Dimas Development Plan Review Board Case No. 20-0023) that is the subject of this lawsuit, from 2019 to the present, including without limitation the follow categories of work: design, architecture, consulting, engineering, construction, plan approval, expediting, furnishing, equipping, permitting, drawing, floor plans, site plan, parking analysis, reflective ceiling, equipment roof plan, equipment layout, structural engineering, schedules details, building elevation, plumbing plan, water line plan, sewer and vent line plan, plumbing isometrics, electrical plan, power plan, heating and ventilation drawings, mechanical plan, lighting plan (title 24), lighting calculation, Energy calculations, title 24, disable access notes, food service elevations, change of use, change of use for beer and wine, provision of stamped plans, plan check, interface with city staff, exterior modifications, installation of vertical metal siding, application of wainscoting, removal of part of roof, construction of parapet wall, window removal and installation, fence construction and/or installation, and trash enclosure construction and/or installation work.

Inspection Demand No. 2:

All non-privileged COMMUNICATIONS that RELATE TO the PROJECT.

The term “COMMUNICATIONS” shall mean all forms of communication, both oral and written, including but not limited emails, letters, text messages, whats app messages, telephone calls, videoconferences, and voicemails.

Inspection Demand No. 3:

All COMMUNICATIONS with any subcontractors between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT, including but not limited to all such COMMUNICATIONS with Fred Tagudar.

Inspection Demand No. 4:

All COMMUNICATIONS with any suppliers between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT.

Inspection Demand No. 5:

All COMMUNICATIONS with any vendors between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT.

Inspection Demand No. 6:

All COMMUNICATIONS with any independent contractors between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT.

Inspection Demand No. 7:

All COMMUNICATIONS with any business partners between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT.

Inspection Demand No. 8:

All COMMUNICATIONS with the personnel from the City of San Dimas between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT.

Inspection Demand No. 9:

All COMMUNICATIONS with any materials house between January 1, 2019 through June 1, 2022 that RELATE TO the PROJECT.

Inspection Demand No. 10:

All contracts that RELATE TO the PROJECT (including but not limited to contracts with vendors, independent contractors, suppliers, materials houses, Fred Tagudar or any business owned or operated by him, or subcontractors.).

Inspection Demand No. 12:

All records showing any restaurant equipment or merchandise for the PROJECT that CAMACHO ordered (including but not limited to receipts, vendor invoices, cancelled checks, bank statements, vendor statements, and vendor/material supplier quotes and related communications).

Defendant HERIBERTO CAMACHO JR. aka TITO CAMACHO CRUZ aka TITO CAMACHO shall be referred to as “CAMACHO.”

Inspection Demand No. 13:

All records showing any materials or supplies for the PROJECT that CAMACHO ordered (including but not limited to receipts, vendor invoices, cancelled checks, bank statements, vendor statements, and vendor/material supplier quotes and related communications).

Inspection Demand No. 14:

Records sufficient to show all payments made by CAMACHO RELATED TO the PROJECT.

Inspection Demand No. 15:

All copies of checks written by CAMACHO to any materials house RELATED TO the PROJECT.

Inspection Demand No. 16:

All records of payments made by CAMACHO for materials for the PROJECT.

Inspection Demand No. 17:

All records of payments made by CAMACHO for supplies for the PROJECT.

Inspection Demand No. 18:

All records of payments made by CAMACHO for merchandise for the PROJECT.

Inspection Demand No. 19:

All records of payments made by CAMACHO for restaurant equipment for the PROJECT.

Inspection Demand No. 20:

All records of payments made by CAMACHO to any subcontractor for the PROJECT.

Inspection Demand No. 21:

All records of orders of restaurant equipment made by CAMACHO for the PROJECT.

Inspection Demand No. 22:

All 1099s issued to workers, independent contractors, and subcontractors who worked on the PROJECT.

Inspection Demand No. 23:

Documentation sufficient to show all professional or occupational licenses held by YOU during any point from January 1, 2019 until the present.

Inspection Demand No. 24:

Documentation sufficient to show all occupational licenses held by YOU during any point from January 1, 2019 until the present.

Inspection Demand No. 25:

Records sufficient to show the amount of funds that were received by CAMACHO from Plaintiff(s) for the PROJECT, but which were never used for the PROJECT.

Inspection Demand No. 26:

All DOCUMENTS that RELATE TO the unused portion of any payments from PLAINTIFFS that YOU received.

Inspection Demand No. 27:

All COMMUNICATIONS that RELATE TO the unused portion of any payments from PLAINTIFFS that YOU received.

Inspection Demand No. 28:

Complete bank statements from between August 1, 2019 through June 1, 2022 for any bank account into which any payments made by the Plaintiffs to any of the Defendants RELATED TO the PROJECT were deposited.

Inspection Demand No. 29:

Complete bank statements from between August 1, 2019 through June 1, 2022 for any bank account held in the name of RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 30:

Complete bank statements from between August 1, 2019 through June 1, 2022 for any bank account(s) held in CAMACHO’s name.

Inspection Demand No. 31:

All DOCUMENTS that YOU identified in YOUR response to PLAINTIFFS’ Form Interrogatories, Set No. One, Interrogatory No. 15.1(c).

Inspection Demand No. 32:

All DOCUMENTS and other tangible things that support YOUR denial of any of the allegations of the COMPLAINT. (The term “COMPLAINT” shall mean the complaint in this matter that PLAINTIFFS filed in Los Angeles Superior Court on April 5, 2022 as Case No. 22STCV11579.).

Inspection Demand No. 33:

Any and all documents which support each of YOUR Affirmative Defenses set forth in your Answer to the Complaint in this lawsuit.

2. Requests for Production of Documents Propounded on Defendant Restaurant Design Studio Corp.

Plaintiff propounded the following RPDs on Defendant Restaurant Design Studio Corp.:

[Inspection Demands 1 through 10, exactly as propounded upon Defendant Camacho.]

Inspection Demand No. 12:

Defendant HERIBERTO CAMACHO JR. aka TITO CAMACHO CRUZ aka TITO CAMACHO shall be referred to as “CAMACHO.”

The term “YOU” and “YOUR” shall mean Defendant RESTAURANT DESIGN STUDIO CORP., a California corporation, including any and all representatives, employees, consultants, agents, persons, or entities, whether individually or collectively, acting on its behalf, including but not limited to Defendant HERIBERTO CAMACHO JR. aka TITO CAMACHO CRUZ aka TITO CAMACHO.

Inspection Demand No. 13:

All records showing any materials or supplies for the PROJECT that YOU or CAMACHO ordered (including but not limited to receipts, vendor invoices, cancelled checks, bank statements, vendor statements, and vendor/material supplier quotes and related communications).

Inspection Demand No. 14:

Records sufficient to show all payments made by YOU or CAMACHO RELATED TO the PROJECT.

Inspection Demand No. 15:

All copies of checks written by YOU or CAMACHO to any materials house RELATED TO the PROJECT.

Inspection Demand No. 16:

All records of payments made by YOU or CAMACHO for materials for the PROJECT.

Inspection Demand No. 17:

All records of payments made by YOU or CAMACHO for supplies for the PROJECT.

Inspection Demand No. 18:

All records of payments made by YOU or CAMACHO for merchandise for the PROJECT.

Inspection Demand No. 19:

All records of payments made by YOU or CAMACHO for restaurant equipment for the PROJECT.

Inspection Demand No. 20:

All records of payments made by YOU or CAMACHO to any subcontractor for the PROJECT.

Inspection Demand No. 21:

All records of orders of restaurant equipment made by YOU or CAMACHO for the PROJECT.

[Inspection Demands 22 through 23, exactly as propounded on Defendant Camacho]

Inspection Demand No. 24:

Documentation sufficient to show all occupational licenses held by CAMACHO during any point from January 1, 2019 until the present.

Inspection Demand No. 25:

Records sufficient to show the amount of funds that were received by YOU or CAMACHO from Plaintiff(s) for the PROJECT, but which were never used for the PROJECT.

Inspection Demand No. 26:

All DOCUMENTS that RELATE TO the unused portion of any payments from PLAINTIFFS that YOU received from PLAINTIFFS, or some of them.

Inspection Demand No. 27:

All COMMUNICATIONS that RELATE TO the unused portion of any payments from PLAINTIFFS that YOU received from PLAINTIFFS, or some of them.

[Inspection Demands 28 through 30, exactly as propounded on Defendant Camacho]

Inspection Demand No. 31:

Any and all corporate minutes prepared by or for the benefit of RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 32:

Any and all corporate resolutions prepared by or for the benefit of RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 33:

Any and all Articles of Incorporation for RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 34:

Any and all Bylaws of RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 35:

The general ledger for RESTAURANT DESIGN STUDIO CORP, from January 1, 2019 through the present.

Inspection Demand No. 36:

The audited and unaudited financial statements of RESTAURANT DESIGN STUDIO CORP, from January 1, 2019 through the present.

Inspection Demand No. 38:

Any and all promissory notes and loan documents entered into by RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 39:

Any and all contracts, agreements, promissory notes, and guarantees with any shareholders, officers, and directors of RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 40:

Any and all lease agreements and any amendments, riders, and addendums thereto, entered into by RESTAURANT DESIGN STUDIO CORP that were operative at any point from January 1, 2019 through the present.

Inspection Demand No. 41:

Any and all emails, minutes, resolutions, and other documents reflecting any deliberation by RESTAURANT DESIGN STUDIO CORP’s officers, shareholders, and directors of the adequacy of RESTAURANT DESIGN STUDIO CORP’s capitalization.

Inspection Demand No. 42:

Inspection Demand No. 43:

Any and all emails, minutes, resolutions, and other documents reflecting any deliberation by RESTAURANT DESIGN STUDIO CORP’s officers, shareholders, and directors of the nature, extent, and provisions for any actual or potential liabilities of RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 44:

Any and all documents which YOU contend reflect or constitute corporate formalities undertaken and observed by RESTAURANT DESIGN STUDIO CORP and its shareholders, officers, and directors from its inception through the present.

Inspection Demand No. 45:

All documents related to any policies of insurance which may cover or relate to the PROJECT.

Inspection Demand No. 46:

Any and all promissory notes, loan agreements, guarantees, credit agreements, and financing documents entered into by RESTAURANT DESIGN STUDIO CORP.

Inspection Demand No. 47:

All DOCUMENTS that YOU identified in YOUR response to PLAINTIFFS’ Form Interrogatories, Set No. One, Interrogatory No. 15.1(c).

Inspection Demand No. 48:

Inspection Demand No. 49:

Any and all documents which support each of YOUR Affirmative Defenses set forth in your Answer to the Complaint in this lawsuit.

B. The Motion

As the Parties all admit, the Motions are mostly (but not entirely) moot because Defendants served supplemental responses on February 8, 2023. (Decl. Skapik re: Defendant Camacho, Ex. A; Decl. Skapik re: Defendant Restaurant Design Studio Corp., Ex. A; Combined Reply, p. 2:12–15.)

Based on the Court’s reading of the February 8, 2023 responses, the following Inspection Demands remain at issue: (1) regarding Defendant Camacho, Inspection Demand 30; and (2) regarding Defendant Restaurant Design Studio Corp., Inspection Demands 30 through 36, 38 through 41, and 44.

Plaintiffs argue in their Reply that they still need an order regarding: (1) Inspection Demands 28 and 29 (on the corporate Defendant) and Inspection Demand 30 (on the individual Defendant) because Defendants are producing only deposit slips instead of all bank statements; and (2) Inspection Demands 31 through 36, 38 through 41, and 44 through 45 (all on the corporate Defendant) because Plaintiffs are concerned that Defendants will backtrack on their current agreements to produce alter ego documents. (Reply, pp. 2:17–23, 3:7–12, 5:3–9, 7:6–22 and Supp. Decl. Grijalba, ¶ 5.)

Defendant Camacho argues: (1) that the Motion should be denied because Plaintiffs have not satisfied the requirements of Civil Code section 3295, subdivision (c) regarding pretrial discovery into Defendant Camacho’s financial condition or any alleged wrongful gains; and (2) that the Motion should be denied because it seeks to compel private information without good cause, citing the constitutional right of privacy and Civil Code section 2031.300. (Opposition re: Defendant Camacho, pp. 2:17–18, 6:14–16, 7:12, 8:19.)

Defendant Restaurant Design Studio Corp. argues: (1) that the Motion should be denied because Plaintiffs have not satisfied the requirements of Civil Code section 3295, subdivision (c) regarding pretrial discovery into Defendant Camacho’s financial condition or any alleged wrongful gains; and (2) that the Court is required to balance competing interests to protect Defendant’s rights to financial privacy. (Opposition re: Defendant Restaurant Design Studio Corp., pp. 2:16–17, 6:11–12.)

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)

“The court may, for good cause, grant any defendant a protective order requiring the plaintiff to produce evidence of a prima facie case of liability for damages pursuant to Section 3294, prior to the introduction of evidence of:

(1) “The profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence.

(2) “The financial condition of the defendant.”

(Civ. Code, § 3295, subd. (a).)

“No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. . . . Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” (Civ. Code, § 3295, subd. (c).)

The Court finds that it would not be appropriate to issue an order permitting discovery into both the financial condition of the Defendants. Defendants’ arguments about privacy outweigh Plaintiffs’ need to obtain the discovery requested.

The Court GRANTS in part and DENIES in part the Motions. Regarding Defendant Camacho, the Motion is DENIED regarding Inspection Demand 30. Regarding Defendant Restaurant Design Studio Corp., the Motion is DENIED regarding Inspection Demands Nos. 28 through 30 and GRANTED as to Demands Nos. 36, 38 through 41, and 44 through 45.

C. Sanctions

Plaintiffs seek $9,334.00 in sanctions for the Motion against Defendant Camacho and $7,770.00 in sanctions for the Motion against Defendant Restaurant Design Studio Corp. Plaintiffs’ Counsel declares: (1) that Counsel Riddick spent six hours on the Motion against Defendant Camacho and six hours on the Motion against Defendant Restaurant Design Studio Corp., all at a rate of $395.00 per hour; (2) that Counsel Grijalba spent 23.4 hours on the motion against Defendant Camacho and 18.1 hours on the motion against Defendant Restaurant Design Studio Corp., all at a rate of $295.00 per hour; and (3) that $122.00 in filing fees were incurred for the Motions. (Decl. Riddick re: Defendant Camacho, ¶ 22; Decl. Riddick re: Defendant Restaurant Design Studio Corp., ¶ 24.)

As Plaintiff emphasized during oral argument, it was only after Plaintiff filed these motions to compel that Defendants supplemented their discovery responses.

The Court finds that the hourly rates and the costs incurred for the Motions are reasonable but that the number of hours expended are unreasonable. The two motions were virtually identical. There was no original research required for either motion.

“If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [cleaned up].) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court will award monetary sanctions for costs, as well as for fees at the rates requested, but only for a total of 4 hours for Counsel Riddick and 4 hours for Counsel Grijalba.

The Court AWARDS monetary sanctions in favor of Plaintiffs and against Defendants and their Counsel, jointly and severally, in the amount of $2,882.00 (calculated as 4 hours @ $395/hour + 4 hours @ $295/hour + $122.00 in costs).

IV. Conclusion

The Court AWARDS monetary sanctions in favor of Plaintiffs and against Defendants and their Counsel, jointly and severally, in the amount of $2,882.00.